Bleach versus deep-cleaning? What to do when an employee tests positive

Despite the widespread practice of shutting down entire retail stores and calling in deep-cleaning experts when an employee tests positive for COVID-19, there is no legal requirement for retailers (or other employers) to do either.

This is according to Talita Laubscher, partner at leading African law firm, Bowmans, who said: ‘We have been told by representatives of the Department of Health that in most circumstances, it’s not necessary to do a complete shutdown. What’s more, cleaning does not need to be completed by special cleaning service providers. It can be as simple as using Jik.’

She was speaking during a recent webinar hosted by Bowmans on employment law challenges faced by the retail sector.

Unlike other sectors, the retail industry has been open since the start of the national lockdown, when there were no directives in place to deal with situations where employees tested positive for COVID-19. In the absence of directives at the time, Department of Employment and Labour inspectors adopted certain practices, such as instructing retailers, especially food retailers, to shut down their stores and call in external cleaning specialists. These practices have in some instances continued from then on – even though they are not legal requirements contained in any of the directives.

Laubscher said in the event that an employee tests positive, the employer must consider three things: the need to temporarily close and decontaminate the affected area; placing the employee who tested positive in isolation; and determining who else has been in contact with the employee who tested positive and assessing the level of risk of that exposure. ‘In this regard, a distinction is made between a high-risk exposure and a low-risk exposure.'

Low vs high-risk exposure

A low-risk exposure is where the contact with the employee who tested positive was for less than 15 minutes and more than 1.5 metres apart, with the individuals wearing protective equipment such as masks or shields. ‘In these circumstances, the employee who was in contact with the one who tested positive can continue to work, but must be carefully monitored for the development of symptoms,’ she said.

In the case of a high-risk exposure, the employee must be placed in quarantine. A high-risk exposure is contact for more than 15 minutes and less than 1.5 metres apart, with the individuals not wearing protective equipment.

‘The employee’s absence following a high-risk exposure absence must be treated as sick leave,” said Laubscher. ‘If sick leave is exhausted, the employer might allow the employee to take annual leave, or special COVID-19 leave, at the discretion of the employer. If such leave options are not available and the employee develops symptoms, the employee may be able to claim illness benefits from the Unemployment Insurance Fund.’

Paid sick leave for employees who test positive

As soon as it comes to light that an employee is positive for COVID-19, the employer must notify the national Department of Health. If the person contracted the virus at the workplace, the Department of Employment and Labour must also be notified.

COVID-19-positive people must immediately be placed on paid sick leave, said Laubscher. ‘If they have exhausted their sick leave, they should apply for the illness benefit under the Unemployment Insurance Act.’

When the employee has recovered and is ready to work, there is no need for her or him to be tested again before returning to the workplace. ‘All the person needs, is a medical certificate confirming that she or he is fit and healthy to work again. There is no legal requirement for another test.’

This has been confirmed in the Directive issued by the Minister of Health on 11 August 2020, in terms of which repeat testing is not required for a person to de-isolate. This Directive also reduces the isolation period to 10 days. The Occupational Health and Safety Directive has, however, not yet been amended and this Directive still refers to the isolation period of 14 days.

In another recent development, the Minister of Employment and Labour has signed new directives on dealing with COVID-19-related Compensation Fund claims. The purpose is to provide clearer guidance on compensation for employees who contracted the virus at the workplace and to take new scientific developments into account.